According to the law, asylum seekers, whose psychophysical state leads to believe that they are victims of violence or have a disability or are unaccompanied minors are not placed in detention centres. This is also applicable to asylum seekers whose detention causes a serious threat to their life or health.1 Under the law, an asylum seeker should be released, if further detention constitutes a threat to their life or health.2 In practice it happens that those vulnerable asylum seekers are detained, even when they were diagnosed as having mental health problems as a result of past events.3 Indeed, a poor mental condition is hardly ever accepted by courts as sufficient grounds for not placing in or releasing an asylum seeker from detention. Courts do not accept psychological opinions submitted by independent psychologists (e.g. from NGOs).4 In practice, only courts of higher instance call on experts to give evidence. This makes proceedings last up to a couple of weeks.5
Until 12 November 2015 Polish legislation did not include any provisions concerning effective methods of identification of vulnerable applicants. There was no definition of a “vulnerable person” in law. From 2014 SG applied a policy document titled “Algorithm for a SG’s conduct with foreigners belonging to the groups of special care”,6 which defined aims, ways and rules for the SG actions in case of identifying a vulnerable person and defined a vulnerable person. The objective was to ensure optimal conditions guaranteeing the assistance of medical personnel and psychologists whenever needed.7 According to an NGO report,8 the SG was implementing the above mentioned procedure and looking for financial means for that purpose (from AMIF).
In October 2015 the SG informed that the above mentioned algorithm no longer applies and was replaced with a new document: “Rules on SG’s conduct with foreigners needing special treatment”.9 It was implemented on 18 September 2015. In the document the SG defined a third-country national needing special treatment, indicated personnel essential to identify a vulnerable person (social assistant – employee of the SG, psychologist, and therapist) and the course of action to take where the vulnerable applicant is placed in detention.
From 13 November 2015 foreigners, who need special treatment, are defined particularly as:10 minors, disabled people, elderly people, pregnant women, single parents, victims of human trafficking, seriously ill, mentally disordered people, victims of tortures and victims of violence (psychological, psychical, including sexual). Despite this amendment in law, still some vulnerable asylum seekers (even those mentioned above) can be detained, because only those foreigners seeking asylum cannot be detained whose psychophysical state leads to believe that they are victims of violence, disabled, unaccompanied minors and asylum seekers whose detention cause a serious threat to their life or health.11 It means that, for example, minors, if they stay in Poland with parents or other legal guardians, can still be detained, as can pregnant women if they are healthy.
In practice, vulnerable applicants are placed in the detention centres. SG claims it does not happen (SG admitted only that 8 pregnant women and 53 children were detained in the first half of 2015),12 but NGOs report such cases e.g. Halina Nieć Legal Aid Centre counted that just from January to April 2013 there were 85 vulnerable asylum seekers in detention centres.13
Apart from the provisions on vulnerable asylum seekers, generally no detention of a TCN should be ordered by a judge if it may cause a serious threat to their life or health14 In 2016 SG does not gather information how many foreigners were released on basis of their poor health. As the experience of some NGO lawyers’ shows,15 the physical rather than the psychological condition is taken into account by the judges. Analysis of the justifications of the courts’ rulings concerning detention leads to the conclusion that in a large number of cases mental health is not considered by judges or there is no reference to the health of the TCNs at all.16
In 2015 a family tried to apply for an asylum a couple of times at the border crossing in Medyka at a polish-Ukrainian border. After several attempts, they managed to submit their application, SG applied to the regional court to place them in a detention centre. Family members were tortured in country of origin and they have visible scars on a cheek. An SG’s motion was justified that family tried several times to enter UE without visa, and that many of citizens of their country of origin had left Poland right away after applying for an asylum. During their stay in a detention centre, psychologist made two opinion confirming that they should not be in a detention due to children’s’ psychological condition. They were not released by the SG or Regional Court.
According to the law, unaccompanied asylum-seeking children should not be detained,17 but in practice it happens when there are doubts as to their age or if they were placed in detention as irregular migrants (which is possible under the law) and only then applied for international protection. Unaccompanied children are placed only in a detention centre in Ketrzyn, where adequate rooms are separated.
Asylum-seeking children who are with the members of their family can be placed in detention centres together with accompanying adults.18 In 2016, 292 children were placed with their parents in a detention centres. Total of all asylum seekers was 603 persons in whole 2016. In 2016 children were placed in detention centres in Kętrzyn, Biała Podlaska and Przemyśl. Still the best interest of the child is not considered in decisions concerning detention.19
In 2011 a coalition of Polish NGOs started a public campaign to stop the detention of children in Poland.20 The Polish Ombudsman (Rzecznik Praw Obywatelskich) also got involved in the matter and made numerous interventions in front of the Ministry of Interior.21 The Ministry of Interior declared at the end of 2012 that their priority was to reduce to the minimum the period during which children are detained and to further adjust the detention conditions in the two guarded centres so that they are more suitable for children, but the Ministry will not introduce a general legal ban on the detention of children.22 NGOs continue to advocate for the general ban on detention of children in 2015. The Law amending the Law on Protection, applicable from 13 November 2015, does not include the general ban on detention of the children.
From 13 November 2015 if the Head of the Office for Foreigners issues a decision to release a TCN from the detention centre and this asylum seeker is disabled, elderly, pregnant or single parent, SG is obliged to organise the transport to the reception centre, and – in justified cases – alimentation during the transport.23
- 1. Article 88a(3) Law on Protection, as amended in November 2015.
- 2. Article 406(1)(2) Law on Foreigners.
- 3. T. A. Dębowczyk, J. Oleszkowicz, Praktyka sądowa stosowania detencji cudzoziemców w Polsce (The jurisprudence of the use of foreigners’ detention in Poland) in T.Sieniow op. cit., 38.
- 4. Supreme Court, Judgmentfrom 4 February 2015 no. III KK 33/14, available at: http://bit.ly/1OiPpZE.
- 5. Legal Intervention Association, information obtained during an interview.
- 6. The document is not public. It has not been assessed by any objective entity yet, so it hard to assess its effectiveness.
- 7. Letter from the Border Guard FAX-KG-CU-5944/IP/15 from 24 August 2015.
- 8. Centrum Pomocy Prawnej im. Haliny Nieć, K. Przybysławska (Ed.), op. cit., 26.
- 9. Letter from the Border Guard FAX-KG-CU-6765/IW/15 from 6 October 2015.
- 10. Article 68(1) Law on Protection, as amended in November 2015.
- 11. Article 88a(3) Law on Protection, as amended in November 2015.
- 12. Letter from the Border Guard MAIL-KG-OI-614/III/15 from 18 August 2015.
- 13. Centrum Pomocy Prawnej im. Haliny Niec [Halina Niec Legal Aid Centre] Cudzoziemcy szczególnej troski w Polsce: identyfikacja, detencja, orzecznictwo. Analiza 2012-2013 [Vulnerable foreigners in Poland: identification, detention, jurisprudence. Analysis 2012-2013], available at http://bit.ly/1dxieU4, 21.
- 14. Article 400(1) Law on Foreigners.
- 15. For example from the Legal Intervention Association (Stowarzyszenie Interwencji Prawnej).
- 16. T. A. Dębowczyk, J. Oleszkowicz, op. cit., 35.
- 17. Article 88a(3) Law on Protection, as amended in November 2015.
- 18. Although it happens in practice that some members of the family are placed in the reception centre and some in the detention - T. Sieniow, Wnioski z monitoringuwraz z rekomendacjami (Conclusions from monitoring with recommendations) in T.Sieniow ed., op. cit., 50, 59.
- 19. Ibid, 34.
- 20. Information about a coalition of NGOs against the detention of child migrants at: http://bit.ly/1UcHfoY.
- 21. More information: Biuletyn Rzecznika Praw Obywatelskich nr 11, Warszawa 2012, available http://bit.ly/1RTIHbU.
- 22. Ministry of Interior’s statement available at: http://bit.ly/1f5pS9Z.
- 23. Article 88cb Law on Protection, as amended in November 2015.